Congress Passes New Evidence Rule 502: September 8, 2008

On September 8, 2008, the House unanimously passed without amendment
S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The Senate had earlier approved by unanimous consent without amendment
S. 2450 on February 27, 2008. See Sen. Rept. No. 110-264. The President is expected to sign the legislation in the next several weeks.

The legislation protects against the inadvertent waiver of the attorney-client privilege or the work product protection. The new rule will apply in all proceedings commenced after the date of enactment and, insofar as is just and practicable, in all proceedings pending on such date of enactment.
S. 2450 is identical to Evidence Rule 502, as approved by the Judicial Conference of the United States in September 2007. Congress, with the consent of the Judicial Conference, added additional language to the explanatory note accompanying Rule 502. The "Statement of Congressional Intent Regarding Rule 502 of the Federal Rules of Evidence" is posted at http://www.uscourts.gov/Congressional _Record_re_S2450.pdf.

Unlike other amendments to the federal rules of practice, procedure, and evidence that take effect automatically unless Congress acts affirmatively to modify, defer, or reject it, "[a]ny such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress." See 28 U.S.C. § 2074(b).